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en-usTechdirt. Stories filed under "takedowns"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Fri, 4 Nov 2016 09:30:00 PDTAdobe Asked Google To Censor Techdirt's Story On How Adobe's DRM Got CrackedMike Masnickhttps://www.techdirt.com/articles/20161103/16030635961/adobe-asked-google-to-censor-techdirts-story-how-adobes-drm-got-cracked.shtml
https://www.techdirt.com/articles/20161103/16030635961/adobe-asked-google-to-censor-techdirts-story-how-adobes-drm-got-cracked.shtmlMarkMonitor is one of the largest companies out there in the "IP protection" business -- and they also have a decently long history of filing bogus DMCA notices. And in one of its recent ones... they targeted a Techdirt news story. You see, three years ago, our own Tim Cushing wrote a little story about how Adobe launched its Creative Cloud subscription offering and had the DRM on it cracked within 24 hours. It was a fun (yet all too predictable) story.

And apparently Adobe/MarkMonitor would like it to disappear from the web. With copyright. Here's the actual DMCA notice filed by MarkMonitor on behalf of Adobe:

Google, thankfully, has a team who reviews these things and rejected the demand. Of course, Adobe/MarkMonitor isn't really trying to censor a story that makes fun of Adobe. That's just collateral damage for the shitty job they do in trying to "protect copyright" by running automated scans. Who knows what actually set this one off, but likely some sort of combination of "creative cloud" and "cracked" -- and then (unlike Google, who actually bothers to review this stuff), MarkMonitor just sent it off without any actual human review.

So, yes, any "censorship" that came out of this would likely have been accidental, but just because censorship is accidental, it doesn't mean that it's inconsequential. The fact that companies that hire MarkMonitor have been rushing around demanding more automated takedown systems, and ridiculous notions like "notice and staydown" that would have created even more harm should be a warning as to why those ideas are a dangerous path.

Oh, and coincidentally, just as this was happening, MarkMonitor had a PR person reach out to see if an exec could speak to me on an unrelated (and uninteresting) story. I've asked them for a comment on their use of copyright to try to censor one of our stories instead. If I hear back, I'll add an update here... Update: And... here's the response from MarkMonitor:

We would like to assure you that MarkMonitor in no way condones censorship, nor does it intentionally take any action that would result in same. Our actions focus on enforcing brand infringements on behalf of our clients and acting in their best interests. In this case, the site in question came into our result set erroneously but the process we have with the search engines ensured that it was not taken down and is still live now.

I like how they claim that it's MarkMonitor's process that stopped the site from being blocked, rather than Google staffers looking over MarkMonitor's bogus takedown notice and saying "nah."

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]]>oh really now?https://www.techdirt.com/comment_rss.php?sid=20161103/16030635961Thu, 3 Nov 2016 06:35:00 PDTFinally Come The Calls In Major Media To Rethink Canada's 'Notice And Notice' Copyright SystemTimothy Geignerhttps://www.techdirt.com/articles/20161102/11315735949/finally-come-calls-major-media-to-rethink-canadas-notice-notice-copyright-system.shtml
https://www.techdirt.com/articles/20161102/11315735949/finally-come-calls-major-media-to-rethink-canadas-notice-notice-copyright-system.shtml
To be fair to our neighbors to the north, Canada really tried. Amidst calls to implement something like the "notice and takedown" system for copyright infringement claims that we have in the States, Canada instead did what Canada does and tried to implement a nicer version of this, called "notice and notice." The idea was that ISPs and service providers, rather than simply taking down content or banning people from the internet over copyright violations, would instead notify users that their behavior had been reported as infringing. More specifically, it allowed copyright holders to pass along these messages, with ISPs acting as the go-between. The theory was that when internet users -- or in many cases family members of those internet users, such as parents -- learned that potentially infringing activity was occurring, the notifications would cause the behavior to cease.

As our own Karl Bode noted in 2014, this theory was backed by the ISPs, who claimed these notices helped curb a majority of piracy. We also noted in that post that the "notice and notice" system appeared to be preferable to our "notice and takedown" system because it appeared to be a less likely avenue for abuse by copyright holders and trolls. Sadly, that was immediately disproven by Rightscorp, with abuse of the system continuing up to the present. When eighty-year-old women are getting settlement shakedown threats from copyright trolls over video games, the aims of educating the public have clearly been subverted.

And it seems some in the mainstream press are finally waking up to it. The CBC published a post detailing that shakedown story along with a few others, before openly wondering whether this system is working as intended.

The so-called "notice-and-notice" system came into effect at the start of 2015. It requires internet service providers to forward copyright infringement notices to customers suspected of downloading unauthorized content such as movies, TV shows and video games. Internet providers must forward the notices because the accusers can't, on their own, determine the identities of the people they're targeting.The notice system was supposed to educate abusers and discourage piracy. But that's not the main message many Canadians are getting.

CBC News asked the federal government what it's doing to address concerns about settlement fee demands. Innovation, Science and Economic Development Canada explained that the notice regime is up for review in late 2017. Spokesman Hans Palmer said the review will allow it to "take stock and consider whether desired policy objectives are being met."

That's going to be an awfully hard circle for Palmer's agency to square, I think, given how often these stories of threat letters are made public. And you can certainly believe that the actual number of these types of shakedowns that occur is a multiple of those that get reported. Laudable though the goals of this Canadian system may have been, in practice it has clearly become just another opportunity for abuse.

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]]>yes-and-yeshttps://www.techdirt.com/comment_rss.php?sid=20161102/11315735949Wed, 26 Oct 2016 14:38:05 PDTFacebook's Arbitrary Offensiveness Police Take Down Informational Video About Breast Cancer ScreeningTimothy Geignerhttps://www.techdirt.com/articles/20161021/10071435853/facebooks-arbitrary-offensiveness-police-take-down-informational-video-about-breast-cancer-screening.shtml
https://www.techdirt.com/articles/20161021/10071435853/facebooks-arbitrary-offensiveness-police-take-down-informational-video-about-breast-cancer-screening.shtml
Stories of Facebook's attempt at puritanical patrols of its site are legion at this point. The site has demonstrated it cannot filter out parody, artwork, simple speech in the form of outrage, iconic historical photos, or sculpture from its prude-patrol censorship. As a private company, Facebook is of course allowed to follow its own whim when it comes to what is allowed on its site, but as an important tool in this era for communication and speech, the company is also a legitimate target for derision when it FUBARs this as badly as it does so often.

So queue up the face-palming once more, as Facebook has decided to remove a video posted by a Swedish cancer charity informing women how to check for breast cancer, because the video included animated breasts, and breasts are icky icky.

Facebook has removed a video on breast cancer awareness posted in Sweden after deeming the images offensive, the Swedish Cancer Society said on Thursday. The video, displaying animated figures of women with circle-shaped breasts, was aimed at explaining to women how to check for suspicious lumps. Sweden’s Cancerfonden said it had tried in vain to contact Facebook, and had decided to appeal against the decision to remove the video.

Based on images on Cancerfonden's site, the tantalizing breasts in question were of the variety of stick figures. Not exactly tantalizing in its imagery, the video content was instead supposed to educate women on the proper method for detecting lumps that could be cancerous. Save for perhaps some minor percentage of humankind, these are the types of images that don't conjure a sexual connotation. And yet Facebook took them down.

In a statement to the BBC, a spokeswoman for Facebook said the images of the Swedish campaign had now been approved.

"We're very sorry, our team processes millions of advertising images each week, and in some instances we incorrectly prohibit ads," she said. "This image does not violate our ad policies. We apologise for the error and have let the advertiser know we are approving their ads."

Which, you know, fine, but exactly how many of these types of stories must be endured before Facebook acknowledges that there is a problem with its filtering and censorship process? I don't think the exclusion of oversight is the answer, but I would hope that we could agree that if the takedown filters continue to catch bronze statues and breast cancer videos in its net, perhaps some recalibration is needed.

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]]>bunch-of-boobshttps://www.techdirt.com/comment_rss.php?sid=20161021/10071435853Wed, 26 Oct 2016 11:45:22 PDTPissed Consumer Sues Reputation Management Firms Over Their Bogus Lawsuit/Fake Defendant/Takedown ScamsMike Masnickhttps://www.techdirt.com/articles/20161025/23483335887/pissed-consumer-sues-reputation-management-firms-over-their-bogus-lawsuit-fake-defendant-takedown-scams.shtml
https://www.techdirt.com/articles/20161025/23483335887/pissed-consumer-sues-reputation-management-firms-over-their-bogus-lawsuit-fake-defendant-takedown-scams.shtmlRichart Ruddie's company, Profile Defenders, which appears to be "improving reputations" online by filing bogus defamation lawsuits, finding a bogus made-up "defendant" to "admit" to posting defamatory information, reaching a "settlement" and getting a court order. The whole scheme is about getting that court order, which is then sent on to Google and others (mainly Google). The whole point: if Google sees a court order saying that some content is defamatory, it will de-index that page. That the whole process to get that court order is a total sham is basically ignored. That may be changing. We were just noting that some of Profile Defenders' cases are in trouble, and at least one has had the court order vacated.

Of course, it appears that Ruddie and Profile Defenders are not the only ones playing this game of judicial fraud. We wrote about a bunch of similar cases back in March that were targeting the online review site Pissed Consumer and some other review sites. At the time, Pissed Consumer had found 11 such lawsuits. In that article, we noted some of the lawyers and firms that appeared to be either involved or benefiting from these cases. And it appears that Pissed Consumer has had enough -- and has sued (represented by Marc Randazaa).

You can read the full complaint, which is an interesting read. It goes into great detail on each of the different cases that it's suing over, but the introduction to the complaint lays out the basics. I'm reposting it in full (minus some citations) here because it's a good summary:

This case involves a creative solution to a common frustration for
many businesses, who do not like negative reviews that are published about them
on the Internet. However, removing consumer reviews from the Internet is a
difficult process given that they are protected by the First Amendment.

Nevada Corporate Headquarters, has gone to great lengths to
attempt to suppress consumer reviews in the past. It has filed at least one SLAPP
suit in Nevada seeking injunctive relief to censor those negative reviews. In that
case, Nevada Corporate Headquarters suffered a resounding loss when they
were hit with an anti-SLAPP order.... They also lost at summary judgment in a SLAPP-back suit. That action resulted in
a significant judgment for attorney fees and costs....

Undaunted by these set-backs, Nevada Corporate Headquarters
has now conspired with other companies and individuals to create a scam
whereby they suppress negative reviews from the Internet, while evading any First
Amendment or due process considerations. This scam also allows them to avoid
the risk of another anti-SLAPP attorney fee award.

Several other businesses and professionals who have been the
subject of negative reviews online have also employed the same fraudulent
machinery as Nevada Corporate Headquarters, as a means of removing this
content while evading detection and liability.

The scam is not all that complicated. Google will remove search
engine results from its well-known search engine if it is provided with a court order
determining that the information is indeed defamatory.

However, when Nevada Corporate Headquarters sued consumer
review websites in the past, it was severely disappointed. (See Exhibits 1 & 2.)
Therefore, they needed to concoct a new censorship scam. So they used a
stooge plaintiff, ZCS Inc. ("ZCS"), to sue a stooge defendant, Collins Mattos
("Mattos").

Defendant Doe Corporations, so called “reputation management
companies,” conceived and organized the scam as an alternative way to
remove negative posts in lieu of undergoing an adversarial proceeding. Several
other businesses and professionals have contacted these “reputation
management companies,” which have used similar schemes to remove negative
consumer reviews about them.

The other conspirators engaged attorneys Mark W. Lapham
("Lapham") and Owen T. Mascott (“Mascott”) to file sham lawsuits either by the
subjects of the negative reviews or by corporations that had no interest in the
allegedly defamatory statements, against a defendant who most certainly was
not the party that published the allegedly defamatory statements, and the parties
immediately stipulated to a judgment of injunctive relief, so the conspirators could
provide the order to Google and other search engines, thus achieving the goal
of deindexing all pages containing negative reviews.

At first blush, Defendants’ scam appears rather brilliant but incredibly
unethical. Now that Plaintiff has uncovered and exposed Defendants’ unlawful
deeds, Consumer Opinion LLC respectfully requests that this Court discipline them
for those misdeeds.

The rest of the filing goes into a lot more details about these court orders, obtained under false pretenses.

The actual claims in the case are for unlawful, unfair and fraudulent business practices, abuse of process and civil conspiracy. As we've seen in other cases, actually getting lawyers disciplined for such bad behavior is actually fairly rare. But Randazza has a history of being a bulldog about these kinds of things (remember Righthaven?). This should be an interesting case to follow.

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]]>well,-here-we-go...https://www.techdirt.com/comment_rss.php?sid=20161025/23483335887Fri, 21 Oct 2016 08:27:57 PDTGeofeedia, In Damage Control Mode, Issues Bogus DMCA Over Brochure Posted By ReporterMike Masnickhttps://www.techdirt.com/articles/20161019/00080135834/geofeedia-damage-control-mode-issues-bogus-dmca-over-brochure-posted-reporter.shtml
https://www.techdirt.com/articles/20161019/00080135834/geofeedia-damage-control-mode-issues-bogus-dmca-over-brochure-posted-reporter.shtmlcut ties with Geofeedia, claiming that it was violating their terms of service. I'd imagine that the various law enforcement agencies and school districts who paid tens of thousands of dollars for this data may be asking for their money back.

So what does Geofeedia do? Well, for starters, it abuses the DMCA to try to take down information. The Daily Dot's Dell Cameron had actually written about how the Denver police spent $30k on Geofeedia back in September, a few weeks before the ACLU report dropped (nice scoop and great timing). Cameron then followed up with a detailed story following the ACLU report as well, noting that there were still plenty of other Geofeedia competitors on the market. At the end of that post, Cameron included a brochure that Geofeedia had apparently sent to a police department last year. But you can't see it now, because (yup) Geofeedia issued a DMCA takedown to Scribd, the company that was hosting it.

Now, sure, Geofeedia likely has a copyright on its brochure. But this is clearly a case of fair use. It's posted for reporting purposes, not competitive ones, on a topic of interest. It's not harming the market for the copyright in the brochure (which has no market). This is just ridiculous, both on the part of Geofeedia, and on Scribd for caving.

And it's pointless too, because it just calls more attention to how ridiculous Geofeedia is. Of all the things it should be focusing on right now, trying to take down a sales brochure in an article should be pretty low on its priority list. And if the idea was to get Daily Dot and Cameron to stop reporting on the company, well, that's failed too. Cameron has a new article out about how Geofeedia's stalking system was marketed to public schools as well.

Paul Alan Levy, along with newly-acquired partner Eugene Volokh, have managed to track down the possible perpetrator behind a couple dozen bogus lawsuits filed in recent months. Richart Ruddie and his company, Profile Defenders, appear to be engaging in some illegal activity in order to provide clients with the services they've promised them.

Ruddie has refused to comment on the lawsuits or answer questions posed by Levy and Volokh. Instead, he has opted to fight speech with more speech [lol] by issuing a very self-serving press release.

Here's what Profile Defenders has to say about itself -- not in response to any questions, but rather to buff some of the tarnish off its dented armor. It's not just about "protecting the rich." [No. Really.] It's about saving clients from cyberbullying. (h/t Paul Alan Levy)

Reputation management companies like Profile Defenders protect the innocent from the action of cyberbullies who prey on people.

[...]

Fortunately, reputation management companies like Profile Defenders have arrived, and in the war between reputation companies vs cyber bullies they give the innocent a chance to tell their story on the Internet. Co-founder of Profile Defenders, Richart Ruddie, is glad that people are given a second chance after being defamed by cyber bullies that act like new age mobsters trying to destroy good people through cyber bullying.

I assume Levy, Volokh, and others who have covered this slowly-unravelling debacle are the "new age monsters" attempting to destroy "good people" --"good people" who apparently have no problem filing bogus lawsuits and forging signatures, all the while charging thousands of dollars to drag down their clients' reputations along with their own.

Had one of the nicest compliments this past weekend. A new friend said "Chart do you know why I like you?"

"At the end of the day you're just a genuine person Richart Ruddie"

You're not looking for anything from anybody, you are just here to be happy and have a good time and if you can facilitate others to be happy as well then you do your part to ensure all others around you are happy.

[I] expect that Ruddie will prove a slippery character – the home page of his “Profile Defenders” web site provides a New York City street address that appears to be phony (a letter I sent him at that address demanding that he preserve relevant documents came back undeliverable), and both the Linked In and Google profiles of Profile Defenders show a Washington, D.C. address that does not exist. Moreover, Florida’s records reveal that Ruddie maintains a stable of many different LLC’s. It may take the investigative resources of a federal or state grand jury or of the Federal Trade Commission to track him and his assets down, and bring him to justice.

Volokh and Levy have uncovered plenty of damning evidence strongly suggesting Ruddie's company is now in the business of filing bogus lawsuits simply because (a) there's very little chance any judge will examine these cases closely (and when a judge does, the suit is refiled in another court) and (b) it's one of the only methods proven to result in delistings of negative reviews hosted by non-parties to the lawsuits. As Levy notes, it may be almost impossible to blow this wide open, much less get Ruddie to answer any questions about these lawsuits on the record. But the reputational damage his company is now causing indirectly to its clients may result in lawsuits Ruddie can't ignore, filed by aggrieved customers who paid thousands of dollars just to see themselves swept into Profile Defender's destructive vortex.

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]]>loutish-abuse-of-the-legal-system-notwithstandinghttps://www.techdirt.com/comment_rss.php?sid=20161015/12113435805Tue, 11 Oct 2016 08:37:03 PDTMore Details Uncovered On Bogus Defamation Lawsuits Being Used To Delist Negative ReviewsTim Cushinghttps://www.techdirt.com/articles/20161010/08115335760/more-details-uncovered-bogus-defamation-lawsuits-being-used-to-delist-negative-reviews.shtml
https://www.techdirt.com/articles/20161010/08115335760/more-details-uncovered-bogus-defamation-lawsuits-being-used-to-delist-negative-reviews.shtml
Paul Alan Levy has gone digging and possibly found one of the entities tied to the bogus defamation suits being used to delist negative reviews. Working with Eugene Volokh of the Volokh Conspiracy (where this article is cross-posted), Levy has discovered even more lawsuits being filed against nonexistent defendants to expedite the removal of content from the web.

There are about 25 court cases throughout the country that have a suspicious profile:

All involve allegedly self-represented plaintiffs, yet they have similar snippets of legalese that suggest a common organization behind them. (A few others, having a slightly different profile, involve actual lawyers.)

All the ostensible defendants ostensibly agreed to injunctions being issued against them, which often leads to a very quick court order (in some cases, less than a week).

Of these 25-odd cases, 15 give the addresses of the defendants — but a private investigator hired by Professor Volokh (Giles Miller of Lynx Insights & Investigations) couldn’t find a single one of the ostensible defendants at the ostensible address.

As Levy and others (namely Pissed Consumer) have noted recently, this practice seems to be on the upswing, along with the hasty creation of bogus "news" sites to assist in the generation of bogus DMCA takedowns targeting unflattering reviews and posts.

The standard M.O. for these bogus defamation lawsuits is described here in yet another case uncovered by Volokh and Levy.

A California newspaper writes a story in 2013 about an elementary school parent who had put fake signatures and falsely attributed quotes on a petition. (The petition was urging the school not to change its gifted education program.) The newspaper quotes the parent as apologizing for her actions.

Two and a half years later, a comment appears on the story: The comment, signed “Robert Castle,” accuses the parent of being prejudiced and taking bribes, though it also says the commenter is drunk and isn’t sure he’s talking about the same person that the story describes.

Then, within a few months, a lawsuit is filed in Shasta County — not where the incident happened — against supposed Shasta County resident “Robert Castle,” claiming the comment is defamatory, and alleging that Castle agrees to an injunction. (The Baltimore, Rhode Island, and California lawsuits share a good deal of legal boilerplate.)

That's where the story would normally end. Once the injunction is approved, the order is forwarded to search engines for the delisting of the URL cited. This one, however, almost has a twist.

Instead of just granting the injunction, the judge demands that the parties come in for a hearing, noting, among other things, that “there is a purported signature of Defendant Robert Castle” but no proof that such a defendant was served.

If only this had moved forward. But the lawyers filing these bogus suits aren't stupid. (Or at least they're not completely braindead.) Like others in the trolling business, these lawyers are greeting pushback from judges as something to be routed around, rather than addressed.

The docket does not report that the hearing was ever held; instead, a similar case is then filed in Los Angeles County, also far from the scene of the underlying incident, with the same plaintiff and the same defendant. An injunction is indeed issued. Yet as best we can tell no Robert Castle lives in Shasta County.

More details have also surfaced in a case Levy is still dealing with -- the filing of a bogus defamation lawsuit on behalf of dentist Mitul R. Patel against an unhappy patient. In this peculiar case, both the supposed plaintiff and defendant claim to have had their signatures forged on the court documents used to secure an order to delist content.

Patel's motion to vacate the bogus lawsuit points a finger at a reputation management firm SEO Profile Defense LLC -- led by Richart Ruddie -- which Patel alleges filed the suit (and forged his signature) without his knowledge after he signed a contract with it for reputation management services.

We have likewise obtained confirmation that Profile Defenders, a Richart Ruddie company, was hired by two of the plaintiffs in the other cases that fit the pattern we described in the opening paragraphs.

The earliest case that we could find fitting this general pattern was filed in November 2015 — and it had as the plaintiff R. Derek Ruddie in Owings Mills, Maryland. Richart Ruddie was apparently born in Owings Mills, and Derrek (though with two r's) appears to be his middle name; the address given in court documents has been associated with Richart Ruddie in various records. And the monthly payments under the reputation management contract signed by Rescue One Financial are to be made to Ruddie’s company at a bank located in Owings Mills.

The defendant in this November 2015 case, true to form, could not be found at the address listed in the court documents. The lawsuit itself succeeded in using a comment, ostensibly derogatory of Ruddie — though it didn’t use Ruddie’s last name — to get a whole RipOffReport.com post deindexed. (The comment was, “Hey Rich whats the deal with this guy you recommended? Does he give you a kick back or something?”) That RipOffReport post was critical of a lawyer, who we assume was the main beneficiary of the November 2015 lawsuit. The lawyer has declined to say whether he had any reputation management agreement with Ruddie.

The future of online reputation management is moving into permanent removals. As the best online reputation management company thanks to the highest success rate int he industry Profile Defenders decided that the best future move for their clients was to go beyond just traditional suppression work of pushing down unwanted search results in favor of good ones.

[...]

Jordan a reputation analyst stated that "While we are still the best for suppression we wanted to go above & beyond what our clients wants and needs are and that involved completely removing and getting rid of search results. Most clients are astonished with the end result. Just yesterday we had a client who said he had used 4 other reputation companies and did not think it was possible and he is glad that profile defenders proved him wrong and doing the impossible." The most common site that we have been able to remove has been Ripoffreport.com. Being the only company that can currently guarantee removals from there has been a boom to our business. While the pricing is not cheap you are certainly paying for what you get.

Ruddie and Profile Defenders have refused to comment on any the allegations nor provided more specifics about the services they offer (which start at $6,000), but the PD website proudly declares the vaguely-defined "service" is a hit -- again using grammar best described as "outsourced."

Reviews on our lawsuit removal service is a top hit from all of our clients. From big time corporations to innocently defamed victims who have suffered from cyber stalkers and anonymous posters who decided to create harmful material about them online have agreed that our service for removing things that are bad or negative about you online is as good as it gets. Our lawsuit service has our internet defamation specialists setup with you for handling the removal of any material that is currently harming you.

What we are able to do for the removal has been nothing short of astonishing to most of our clients. Since anybody can hide behind a curtain and write whatever they would like online on popular consumer advocacy and review websites it is no stopping what appears online at first. That was until we created a service to help facilitate the legal aspect that is needed to have your bad information reviewed. We have to be vague on the details legally until we speak with you and put you in touch with the proper defamation attorney in your locale to handle your case.

For more information fill out the form to the left or give us a call today.

[Not pictured existent: form to the left.]

That's where things stand now. Some people in the SEO/reputation management business have found a legal loophole that seems to be working for the time being. Pushing unchallenged libel suits through lower courts is likely a low-risk activity, given the existence of more difficult and time-consuming cases sitting on most dockets. Unfortunately, as Levy points out, a case currently in front of the California Supreme Court could make California the bogus lawsuit venue of choice.

[T]he possibility of such shenanigans bears on the Hassell v. Bird litigation that is now before the California Supreme Court: The issue there (see here and here) is whether takedown injunctions can actually be made legally binding on Internet platforms, rather than just being something that platforms choose whether to follow. The questionable nature of many such injunctions is reason to further insist that platforms not be legally bound by them.

DMCA takedowns have always lent themselves to abuse. Now, unfortunately, the judicial system is helping out bad actors in the reputation management business for taking down more content, however inadvertently. This is why people claiming that CDA 230 needs a DMCA-style "takedown" system are wrong.

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]]>not helping with the 'rep mgmt not a SCAM' argumentshttps://www.techdirt.com/comment_rss.php?sid=20161010/08115335760Tue, 20 Sep 2016 10:43:44 PDTItaly Proposes Law To Make Mocking People Online IllegalMike Masnickhttps://www.techdirt.com/articles/20160919/17403635566/italy-proposes-law-to-make-mocking-people-online-illegal.shtml
https://www.techdirt.com/articles/20160919/17403635566/italy-proposes-law-to-make-mocking-people-online-illegal.shtmlone of the dumbest such laws in history, written so broadly that it will outlaw a lot more than the kind of "cyberbullying" it's supposedly intended to combat:

Under the proposed law, the "site manager" of Italian media, including bloggers, newspapers and social networks would be obliged to censor "mockery" based on "the personal and social condition" of the victim -- that is, anything the recipient felt was personally insulting. The penalty for failing to take action is a fine of €100,000. Truthfulness is not a defense in suits under this law -- the standard is personal insult, not falsehood.

Yes, mockery on the internet could get you a €100,000 fine. Mockery. The internet. The internet is made for mockery. And now is the time that everyone should be mocking this idiotic law -- and the politicians who proposed it without having the slightest idea of how such a thing would be abused all the time. As Cory Doctorow at BoingBoing notes:

... what it will do is create a tool for easy censorship without due process or penalty for misuse. The standard proposed in the bill is merely that the person on the receiving end of the argument feel aggrieved. Think of the abuse of copyright takedowns: online hosts already receive millions of these, more than they could possibly evaluate, and so we have a robo-takedown regime that lets the rich and powerful routinely remove material that puts them in an unflattering light.

As bad as that is, at least it makes censorship contingent on something specific and objective: copyright infringement, which has a wealth of caselaw defining its contours. Indeed, so much that you need to be a trained expert to adjudicate a claim of infringement. But at least you can objectively assess whether a copyright infringement has taken place.

The standard set by the proposed Italian law allows for purely subjective claims to be made, and for enormous penalties to be imposed on those who question them before undertaking sweeping acts of censorship.

There are some efforts under way to "improve" the law by making it not quite so draconian, but maybe, just maybe, the "improvement" should be to recognize that you're never going to successfully outlaw mockery on the internet.

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]]>what-a-stupid-fucking-lawhttps://www.techdirt.com/comment_rss.php?sid=20160919/17403635566Mon, 19 Sep 2016 09:34:00 PDTFormer UMG Exec: Major Label Music Should Cost More And DMCA Safe Harbors Should Be DestroyedTim Cushinghttps://www.techdirt.com/articles/20160915/07531635524/former-umg-exec-major-label-music-should-cost-more-dmca-safe-harbors-should-be-destroyed.shtml
https://www.techdirt.com/articles/20160915/07531635524/former-umg-exec-major-label-music-should-cost-more-dmca-safe-harbors-should-be-destroyed.shtml
If you're going to argue against YouTube, Spotify, etc. and the supposed wholesale screwing of artists, it helps if:

A. You're not a former member of an entity with decades of experience in screwing artists, and

The music community’s grievances are the following: (1) The DMCA allows internet service providers to build ad-based businesses built upon infringing content that the artists cannot effectively police through “notice and take down” procedures; (2) If and when service providers pay the artists, it’s on the providers’ hopelessly complex terms, resulting in payments that offer fractions of pennies per view; (3) Service providers offer “free” teaser music to the public when copyright owners should have the absolute right to control distribution of their music.

(1) The DMCA sucks, but it sucks the way studios and labels wanted it to. Now they don't like it and they want to change it to suck in a different way. They're also arguing for "notice and STAY down," which works out great for labels/studios… unless they're inadvertently targeting their OWN site with unvetted DMCA notices.

(2) "Hopelessly complex terms" are included in almost every royalty agreement. Service providers don't have a monopoly on this behavior.

(3) If copyright owners want "absolute control," they're free to pull their music, movies, etc. from services they don't like. Not many have, because not many are willing to give up this revenue stream they constantly claim isn't paying enough. As for the artists themselves, they have no "absolute control" -- not if they're signed to a label. Young may be writing about screwed artists, but he's really only interested in protecting the "rights" of gatekeepers.

He confirms this by claiming major labels deserve to be treated better than other copyright owners.

Free music streaming is fair only for original, home-based music. However, what the public streams mostly comprises of premium, professional content. This content is expensive to create, risky to market and requires many behind-the- scene professionals.

It's OK for service providers to screw the little guy. But don't mess with the majors. They have oh-so-many mouths to feed -- mouths that are more deserving of revenue than creators that don't cut them in on the deal. Young wants a better deal for artists, but with a caste system attached.

Here's more:

Every minute, 400 hours of footage is uploaded to YouTube, much of it synched to copyrighted music. [Note: citation needed.] This gives YouTube a distinct advantage over Spotify, Tidal, Apple Music and other services that do not offer user-generated streaming of works they do not control.

Much of this YouTube footage is monetized with paid ads. YouTube retains a minimum of 45 percent of this revenue, at prices it sets (but does not reveal), irrespective of the content’s creation costs.

Major label music should "pay" more -- whether it's a premium in subscription fees or a larger cut of advertising revenue payouts. Why? Because it costs more to make. But production costs have little to do with pricing -- and that includes advertising revenue.

If we lived in Young's world, tickets to "Paranormal Activity" (production budget: $450,000) would be $5 and tickets to "Avatar" (production budget $425,000,000) would be $4,700. [Productions costs taken from here.] Buying My Bloody Valentine's "Loveless" would bankrupt music fans just as certainly as it nearly financially destroyed the label that released it, while Owl City's basement-produced hit album could presumably be had for a handful of pocket change.

Young -- and the label he worked for -- appear to believe the internet owes them a living. But just them. Not the rest of these shabby artists the labels are unwilling to gatekeep for.

Once Young has finished deliberately misunderstanding how markets work, he moves on to the point of his op-ed, which begins with him recycling the stupid "built on the backs of artists" trope that presumes no service provider could ever become successful without engaging in copyright infringement. Then he goes right off the rails.

I would argue for stronger, industry-wide measures: a complete repeal of the safe harbor provisions of the DMCA and a prohibition on any unauthorized uploading of the property of others.

The first part is insane. Young actually wants service providers to be fully responsible for the actions of their users. Like the ongoing attacks on Section 230 of the CDA, this is a very lazy, very dangerous attempt to paint targets on the backs of those who have money, rather than perform the more difficult work of targeting the users who actually commit copyright infringement, make defamatory statements, etc.

This line of thinking says labels and studios need do nothing more than bitch loudly and expect everyone else to solve their problems -- whether it's websites, legislators, or internet service providers. This is how they "protect" their artists. By complaining stupidly and demanding the internet be torn apart and rebuilt to their specifications, damn the collateral damage.

The second part is just moronic. Every site prohibits unauthorized uploadings. Active efforts are made to police uploaded content and any site that wants to stay alive for long sets up a DMCA agent to respond to takedown notices. But it's never enough. Young apparently feels current prohibitions just aren't prohibitive enough, as though there were a magical tech solution somewhere that might prevent any unauthorized uploading from taking place ever again, if only service providers weren't so busy raking in billions on the backs of major label artists.

The whole op-ed is an embarrassment. But, unfortunately, it's par for the course in major label/studio arguments. It's worse than the blind leading the naked. It's the ignorant leading the angry. It's short-sighted rent-seeking by people who somehow think they can force more revenue out of service providers by destroying the protections that have allowed them to prosper.

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]]>st(r)eaming-pile-of-horseshithttps://www.techdirt.com/comment_rss.php?sid=20160915/07531635524Tue, 13 Sep 2016 09:31:35 PDTAnother Day, Another Anomaly: Paramount Issues DMCA Takedown On Ubuntu Linux TorrentMike Masnickhttps://www.techdirt.com/articles/20160912/09295735500/another-day-another-anomaly-paramount-issues-dmca-takedown-ubuntu-linux-torrent.shtml
https://www.techdirt.com/articles/20160912/09295735500/another-day-another-anomaly-paramount-issues-dmca-takedown-ubuntu-linux-torrent.shtmlon its own sites (and also Amazon and IMDB links for its movies), and now TorrentFreak alerts us to Paramount issuing a DMCA takedown on a torrent of Ubuntu, the popular version of Linux that many people use all the time.

It's kind of a weird request, and it's not at all clear why it's included in this takedown notice, which is for a variety of movies. In the section on the movie Transformers: Age of Extinction, Paramount (filed by notoriously clueless IP Echelon), it includes a link to a torrent of an Ubuntu iso.

So, once again, we have a major Hollywood entertainment entity -- which has been insisting for years that Google and others should "just know" when something is infringing and take it down and block all future infringements -- who can't even properly identify the content that it's claiming to hold the copyright over. And, again, copyright is context specific, meaning that the absolute best party to understand if there's infringement is the copyright holder, rather than some random third party. But in just a week or so, we've seen examples of how two of the biggest studios in Hollywood can't even figure out their own takedown notices properly. How can they possibly expect others to do so for them -- and why should we trust them when they ask for a "notice and staydown" system that will inevitably take down (and keep down) tons of non-infringing material?

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]]>but-stopping-copyright-infringement-is-easy?https://www.techdirt.com/comment_rss.php?sid=20160912/09295735500Tue, 6 Sep 2016 06:26:00 PDTWarner Bros. Issuing Takedowns For Its Own Site Is No Laughing MatterMike Masnickhttps://www.techdirt.com/articles/20160905/23435335440/warner-bros-issuing-takedowns-own-site-is-no-laughing-matter.shtml
https://www.techdirt.com/articles/20160905/23435335440/warner-bros-issuing-takedowns-own-site-is-no-laughing-matter.shtmlissuing DMCA takedowns on its own website. Specifically, in recent notices to Google from Vobile, on behalf of Warner Bros., the infringing domains include WB's own official websites for movies like "Batman, the Dark Knight" and "The Matrix."

And, yes, this is hardly the first time that companies have been caught targeting themselves. After all, Viacom famously sued YouTube over Viacom's own promotional clips that it had uploaded to the site. And, the recording industry is famous for taking down the official videos of its artists.

But here's why this isn't really a laughing matter: many of the legacy industry players, including Warner Bros. and the MPAA who represent WB, have been pushing very heavily for a revamp of the DMCA that would include a "notice and staydown" provision -- such that once a copyright holder representative sent a notice claiming a work was infringing, platforms would basically be required to block that content from ever appearing again. In response, many of us have pointed out just how bad companies like Warner Bros. are at issuing takedowns, and we're told that such mistakes are rare. But they're not rare. We see them all the time. And if notice and staydown were in place, it could create all sorts of problems.

Notice, too, that it wasn't just WB's own site that was the target of this bogus takedown. Just two slots above it are the official Amazon sales link for the movie. Elsewhere in the list were official IMDB pages as well. Yes, Google is actually better than most at going through these notices and rejecting ridiculous requests like this, but most other companies are not. If you send a notice, it's treated as accurate, and down go those sites. Some may consider that fair game when it's something as ridiculous as WB taking down its own sites, but it's not so funny when it's someone else's work -- like the time Fox sent DMCA notices taking down Cory Doctorow's book, Homeland, just because it had the same title as a TV show.

Meanwhile, we keep hearing from companies like Warner Bros. about how Google is really to blame, and that it's "obvious" when there's infringing content that should be taken down. If it's so "obvious" why can't WB gets its act together and not take down its own sites? Perhaps it isn't so obvious after all and perhaps we shouldn't make copyright policy based on the bogus claims of companies so clueless that they're issuing DMCA takedowns on their own websites or other official channels?

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]]>notice and staydown?https://www.techdirt.com/comment_rss.php?sid=20160905/23435335440Tue, 23 Aug 2016 10:47:01 PDTSony Apparently Issuing Takedowns To Facebook For News Articles About PS4 Slim LeakTimothy Geignerhttps://www.techdirt.com/articles/20160823/08355635312/sony-apparently-issuing-takedowns-to-facebook-news-articles-about-ps4-slim-leak.shtml
https://www.techdirt.com/articles/20160823/08355635312/sony-apparently-issuing-takedowns-to-facebook-news-articles-about-ps4-slim-leak.shtml
Recently, Sony had let it be known that it would soon be announcing some new offerings for its PlayStation 4 console. While most of the media coverage had focused on what is suspected to be a new, more powerful version of the console, a leak this week instead revealed a different console offering, consisting of a newly slimmed down form factor PlayStation 4 with a slightly redesigned controller. As an owner of a PS4, I can join others' interest in this design, with the original console being somewhat bulky. I can also join others in having only a mild bit of surprise as a reaction, given that Microsoft had already announced a slimmed down version of its Xbox product, and given that Sony has done this with previous versions of the console as well.

But I was slightly surprised to learn that Sony has apparently been setting its lawyers on spooking gaming media sites and taking down news articles from social media accounts about the leak. Reports of the latter have just started coming in.

Now, Forbes has an annoying restriction on access to its site if you are sensibly using an ad-blocker, so I won't include the link for which the takedown was reportedly issued. That said, the post references the work Eurogamer did in visiting the leaker of the image to confirm the console is for real (it is), as well as generating its own image and even video of the console working for its story on the leak. But if you go today to the Eurogamer post about the leak, the video has been replaced by the following update.

UPDATE, 7.30pm: Upon taking legal advice, we have removed the video previously referenced in this article.

Left unsaid is whether or not any contact had been made by Sony with Eurogamer, thus prompting this "legal advice," but one can imagine that being the case, particularly given Sony's threats to social media users sharing images and reporting of Sony leaks and, more to the point, threats against any media that might report on those leaks. One can understand why a gaming website might blanch in the face of Sony's legal hounds, but it's still disappointing to see the tactic work.

Which brings us to this very moment. I imagine that the entire point behind these legal threats was to keep the news of a slimmed down PS4 from spreading prior to its official announcement. But, thanks to the Streisand Effect, here we are talking about it anyway, while simultaneously discussing the attempted coverup and questionable threats to fans and media that Sony has undertaken. So...mission accomplished?

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]]>why?https://www.techdirt.com/comment_rss.php?sid=20160823/08355635312Mon, 22 Aug 2016 13:07:20 PDTAnti-Piracy Operations Are Fabricating Links To Non-Existent Torrents In DMCA NoticesMike Masnickhttps://www.techdirt.com/articles/20160822/00211535297/anti-piracy-operations-are-fabricating-links-to-non-existent-torrents-dmca-notices.shtml
https://www.techdirt.com/articles/20160822/00211535297/anti-piracy-operations-are-fabricating-links-to-non-existent-torrents-dmca-notices.shtmltotally unrelated things that happen to have the same name. However, the folks over at TorrentFreak have found another form of totally bogus takedown: completely fabricated torrent links for torrents that have never existed. The issue here is that the fabricated links were targeting two torrent caching systems, Zoink.it and Torrage.com. TorrentFreak explains how they work... but also why the targeted links did not ever exist:

These don’t have a searchable index of torrents, but serve as a hosting platform for torrent sites, identifying torrents by their unique hash.

For example, a torrent for an episode of Ballers that aired a few weeks ago has the hash C87000EF73557A488D5C21BF8F9FA4CC24EC0513. This file would then be available at Zoink under the following url:

zoink.it/torrent/C87000EF73557A488D5C21BF8F9FA4CC24EC0513.torrent.

We say would be, because Zoink.it was shut down at the end of 2014. The same is true for the other torrent cache, Torrage, which has been offline for quite a while as well.

Okay, so you can see how this happened. The anti-piracy groups understood just enough about how the torrent cache sites worked, that they automated sending takedowns based on torrent hashes on the assumption that those torrents would also show up via the cache sites. Okay, understandable. But here's the problem: they never checked to see if those links ever existed. Hell, it sounds like they never even visited Zoink.it again for at least the past two years.

And yet they sent takedowns for links there.

So how can these companies actually claim that they know these "files" are infringing, when they clearly never even checked the links, let alone the fact that the site they're accusing of infringement, hasn't even been up for two years?

The TorrentFreak article notes that this is not a one-off thing. They found other anti-piracy groups sending takedowns for more non-existent torrents on the same non-existing sites. We know that these fly-by-night operations don't bother to check the files to see if they're actually infringing material, but now we know they don't even seem to check to see if sites or links ever actually existed in the first place.

Pissed Consumer uncovered this shady tactic back in April, noting that legitimate-sounding sites like the "Frankfort Herald" and the "Lewisburg Tribune" were issuing takedown notices on complaints posted to the gripe site. These fake news sites tended to be filled with a blend of scraped content and and negative reviews/posts from sites like Pissed Consumer and Ripoff Report copy-pasted in full and backdated to make them appear as if they'd appeared at the bogus sites first.

Our article about this tactic, containing some additional details we tracked down, caught the eye of an entity called Web Activism, which is now digging up as many details as it can about this DMCA-abusing reputation management tactic. Web Activism notified Adweek that a couple of past articles hosted there were being targeted by bogus DMCA notices.

This attempt was temporarily effective in that we unpublished the story. That’s not something we’d normally do, but given that the post was 6 years old and we weren’t aware of the context, we figured it was appropriate. We recently put the post back up, because the takedown request was a big lie.

The targeted posts contained some unflattering depictions of Torrence Boone, who went from a sinking ad agency to a Vice President position at Google, working closely with its ad partners. The takedown requests weren't issued -- at least not directly -- by Boone. Instead, they came from a fake journalist at a fake new site: Jennifer Clandon at fox18news.com.

As Coffee notes, there is no person named Jennifer Clandon working for Fox News… anywhere. Not only that, but the Fox 18 News site is now unreachable. The fake article cited in Clandon's DMCA takedown request is a word-for-word copy of AdWeek's original post.

For what it's worth, Boone's lawyers deny he had anything to do with the bogus takedowns.

Boone’s lawyers have repeatedly denied to AgencySpy that he was involved in the takedown requests or that he had any knowledge of the effort that appears to have been made on his behalf. They admit he has occasionally “hired digital marketing firms to manage his online profile” but claim that “they have not taken any action directed toward [your company] on behalf of Mr. Boone in March 2016, or at any other time.”

Tellingly, though, his lawyers spent most of our exchange last week arguing against the content of the “unemployable” post rather than discussing the request to take it down six years later: “In reply to your email to Mr. Boone, he disputes the defamatory blog post reportef [sp] by AdWeek in 2010 that he was ‘unemployable’. Mr. Boone stands by his service at Enfatico.”

But Coffee also points out that Boone has previously issued DMCA notices in his own name in an attempt to remove a photo of him from the internet.

The Lumen database also includes a separate entry for a 2012 request made by Boone himself, who asked that Google remove the “Hot” post because it contains allegedly copyrighted materials in the form of “A picture of me at a Carnival parade in a costume that includes a blonde and orange clown wig.” It’s unclear whether Google responded to this request.

The bogus Fox site may be down, but the Internet Archive has salvaged a few pages. None of them are the one cited in the bogus takedown notice, but there are others that seem very out of place in a TV channel's website. One is a very angry complaint about (gasp!) a reputation management service, Reputation.com. Another refers to a medication service as a pyramid scheme. Another DMCA notice issued by the FoxNews18.com site lists an email address of anthonygrice44@gmail.com -- likely another throwaway account that would reveal nothing about the true owners of the bogus news site.

Going further back into the archives, it appears the URL once belonged to a legitimate news site that served Charlotte, North Carolina. For most of 2015-16, however, it was repurposed as a scraper site to generate bogus takedown notices.

Torrence Boone may have no direct knowledge that these actions are being performed on his behalf. He admits -- through his lawyers -- that he has outsourced his reputation management on previous occasions. The combination of scraped content, dodgy English, and zero shame seems to indicate somewhat-reputable reputation management firms are also outsourcing their reputation management work, possibly hiring people outside of US-governed jurisdictions (via any number of freelance services like Upwork or Fiverr) to whip up fake sites to plant content they want removed from Google's listings.

Even if the reputation management firms haven't outsourced their bogus takedowns, there's very little risk involved. Fake names attached to fake sites are often almost impossible to link back to real individuals or companies. The worst thing that can happen when a bogus DMCA notice is issued is nothing -- at least to the shrouded reputation management firms. The reputations they're managing might get shredded by the Streisand Effect, but it's not as though the government has much interest in pursuing those who abuse the DMCA process. Shady reputation management firms will continue to be shady as those screwed by their bogus tactics aren't going to take the risk of further exposure by publicly calling them out for turning their already-damaged reputations into mini dumpster fires.

Web Activism, however, claims to be doing something about this. It is investigating these bogus sites/takedown requests in hopes of uncovering the people/entities behind them. To date, it has rounded up 500 questionable DMCA notices, investigated 200 of those and published reports for 55 of these. It will continue to dig into these going forward, keeping an eye on the Lumen "Chilling Effects" DMCA database for new arrivals from bogus websites.

It seems kinda pointless that you can't use the actual video for that, but welcome to a world where intellectual property locks down everything.

Either way, various people were creating other ways of showing all this, and a guy named Jimmy Donofrio created a video that I think showed the end of the race synced up to the opening of the famous song "Smooth" by Carlos Santana, featuring Matchbox 20's Rob Thomas. You've heard the song. It's basically impossible for anyone to not have heard this song (or at least that opening guitar riff) at some point since it was released in 1999. Apparently, if you start the song just as Ledecky finishes, it gets all the way through the opening and up to Thomas saying, "Man it's a hot one...." before the 2nd place finisher touches the wall. The mashup video started to go viral. MTV News reported on how awesome it was.

Someone -- either the Olympics or whoever holds the copyright to the song -- issued a takedown. This is ridiculous. The use here was almost certainly fair use. But when you have two of the most aggressive copyright aggressors around -- record labels and the Olympics -- I guess it's no surprise that they would ignore fair use and take down content like this, which is the kind of content that would likely only get more people interested in either the Olympics or the music. But, no, copyright is apparently more important than that.

Separately, it's disappointing and somewhat ridiculous that Twitter agreed to take this down. I get that it doesn't want to lose any DMCA safe harbors -- and perhaps it doesn't want to piss off the Olympics -- but seriously, get a backbone and stand up for fair use.

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]]>who-gets-the-gold?https://www.techdirt.com/comment_rss.php?sid=20160815/08540335245Tue, 2 Aug 2016 03:25:00 PDTDMCA Takedown Company Thinks It's Making A Point With 'Transparency Report' -- Really Just Looks Like A JackassMike Masnickhttps://www.techdirt.com/articles/20160731/22593035125/dmca-takedown-company-thinks-making-point-with-transparency-report-really-just-looks-like-jackasses.shtml
https://www.techdirt.com/articles/20160731/22593035125/dmca-takedown-company-thinks-making-point-with-transparency-report-really-just-looks-like-jackasses.shtml
If you went to that website, for at least a little while, Remove Your Media was posting full details of people who filed counternotices to some of its DMCA takedowns. These postings made no effort whatsoever to redact personal information such as emails and phone numbers (TorrentFreak has an image where it redacted the info itself).

The "point" that Remove Your Media is so weakly trying to make is that there is a tiny group of copyright extremists who think that Lumen / Chilling Effects is itself a source of piracy because in posting DMCA notices, it leaves the links that copyright holders are demanding be taken down (it's noteworthy that Lumen does redact personal information, though). Of course, these are apples to oranges differences. The reason that Lumen leaves up those links is because the whole point of Lumen is to act as a clearinghouse of data for people to understand how the DMCA is used. And, in fact, it's been an invaluable tool for us and other researchers in finding examples of DMCA abuse. That would be significantly more difficult if the links in the notices were redacted. In fact, it would take away nearly all of the value of the database.

In response to the TorrentFreak article, it appears that Remove Your Media has taken down the information that it posted, and replaced it with a link to the head cheerleader of the anti-Lumen/Chilling Effects crowd, Ellen Seidler. Seidler has spent many, many, many years tilting at windmills complaining about piracy, which she blames for the poor performance of her poorly reviewed film (which, amusingly, borrowed its title from a much more famous movie). Just a few months ago, at the Copyright Office hearings in San Francisco, Seidler again raised this issue of Lumen itself being some sort of "rogue site" for posting DMCA notices.

However, as was pointed out at the time, there is basically no evidence whatsoever that Lumen is used as a source to find pirated links to any extent that matters at all. Without any evidence of pirate hordes searching an academic database of DMCA takedown notices, this hardly seems like a worthwhile thing to bitch about. And, besides, what Remove Your Media did in "turning the tables" doesn't even make the point it wanted to make. There's a world of difference between posting the details included in a DMCA notice in such a database, and deliberately revealing someone's private info. One is a legitimate attempt to collect useful data on how DMCAs are being used.

The other is just acting like a complete jackass.

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]]>what point are they making reallyhttps://www.techdirt.com/comment_rss.php?sid=20160731/22593035125Mon, 11 Jul 2016 12:52:00 PDTQuestionable DMCA Takedown Notice Filed Over Post Calling Lawyer Out For Copyright InfringementMike Masnickhttps://www.techdirt.com/articles/20160711/11004234937/questionable-dmca-takedown-notice-filed-over-post-calling-lawyer-out-copyright-infringement.shtml
https://www.techdirt.com/articles/20160711/11004234937/questionable-dmca-takedown-notice-filed-over-post-calling-lawyer-out-copyright-infringement.shtmlcompletely bogus DMCA takedown over his salary info being included in the Sony Hacks email dump. And now we turn to Carl David Ceder, a young criminal defense lawyer in Texas. If you recognize that name, it might be because a much more well-known and established criminal defense lawyer, Scott Greenfield, wrote a few blog posts about young Carl a few years ago, when he discovered that Carl had been beefing up the content on his professional website by simply plagiarizing the content of other, more established legal bloggers, and posting it as if it were his own thoughts. To put it mildly, Carl did not respond well to this and sent a few barely comprehensible rants blaming everyone but himself, and never actually apologizing for copying someone else's content wholesale.

Now, there are lots of ways to deal with this kind of thing. One could admit it was a mistake, but that doesn't seem to be in Carl David Ceder's nature. And, of course, around here, we're certainly willing to consider fair use arguments for copying material, though Carl presents none, and, indeed, it appears there's little fair use claim he could make for what he did. There's a pretty strong argument that he engaged in both plagiarism (claiming someone else's work as your own) and copyright infringement, and from his response, didn't appear to understand either issue, or why some people were concerned about it.

But, today, about a year and a half after Greenfield's original post, it appears that Carl David Ceder has discovered copyright law, but for all the wrong reasons. He sent not one, not two, but three DMCA takedowns for Greenfield's original post. Here's the first one that gets some pretty basic stuff about copyright law wrong:

So, let's start with the basics. Carl thinks he's found a way to get back at Scott, but he's wrong, because it appears he doesn't understand copyright law at all (given his actions earlier in copying content and then lashing out at everyone, perhaps this is not a surprise). First off, the specific copyright claim is not to Scott's overall post, but rather that Scott used Carl's awful headshot in the post, as part of his mocking of Carl.

Now, there are lots of things wrong with this. First off, using an official headshot in reporting on someone is not copyright infringement. It's fair use. This is actually an issue that's come up in court multiple times, and it's always considered fair use. There was the case a few years back of a gripes site that used professional headshots and got sued for infringement. In that case, it was determined that the use of the headshots was fair use and that the lawsuit was clearly a SLAPP suit designed to silence the site. More recently, in a more political context, a judge ruled that using a political headshot on a blog post was also fair use. So, the claim of copyright infringement here is already pretty damn weak.

Perhaps more importantly, as Carl David Ceder seems to directly admit in one of the DMCA takedown notices, he doesn't even hold the copyright in question. Instead, he got the photo taken at his local JC Penney photo studio (classy!), and they retain the copyright, but have granted him a limited license to use the photo. From one of the DMCA notices:

A website that your company hosts (according to WHOIS information) is infringing on at least one copyright owned by my company.
An photograph of myself, that has a valid copyright by Lifetouch Portrait Studios Inc (“Lifetouch”) – which I have expressed permission to use, as an authorized user, to reproduce, distribute, and display my photograph.This copyrighted material was copied onto your servers without permission. “Lifetouch” only gave authorized permission for me to use it – they were the photographers when I took this professional headshot. Please find the original document indicated this has a valid copyright, and it is being used in violation of copyright laws, and is infringing on valid copyright laws that apply to the contents of what is in this post. It is noted on the copyright authorization form, that ”Federal and State copyright laws provide that the author of a work is the owner of it. Copying a work WITHOUT the author’s permission is a violation of the law. The only permission given is to the owner of the CD given with the images on it.” The copyright authorization form expre
ssly states, “Any other copying is a violation of the copyright law and may subject the violater to criminal and civil prosecution.”

If you'd like, you can also see the full copyright authorization notice. It's a pretty typical authorization notice from these kinds of studios, but Cedar seems to miss out on the fact that while it is giving him a license to reproduce or display the image, that does not necessarily give him the authorization to issue a legal threat over it as he is not the copyright holder. Nor does it appear that he is officially representing the actual copyright holder. Instead, he just quotes some of the authorization, which he appears to totally misunderstand. In giving him a non-exclusive license, Lifetouch still retains the actual copyright, and thus is the only one who can issue such a takedown or take any legal action over the photograph (which it shouldn't do because it's clearly fair use anyway).

And while it's unlikely that Lifetouch gave anyone else a license to use Ceder's image, he doesn't actually know that. Greenfield certainly didn't need a license (it's fair use), but he simply assumes that because Lifetouch gave him a non-exclusive license, it didn't give one to anyone else. Yet he has no evidence of that at all.

Finally, while Ceder quotes the silly and misleading copyright language on the authorization form, that language was meant for him and not for others. That language has no actual impact on Greenfield's use, which again is clearly protected fair use. Besides, that copyright notice is pretty bogus. Even referencing state copyright laws makes no sense, because photographs are strictly covered by federal copyright law, not state copyright laws (which, other than the rare exception of pre-1972 sound recordings, basically doesn't even exist any more). And, again, using a headshot in a blog post with commentary about the person is well-established fair use, so the bogus claim that any copying is infringement is just wrong.

But, really, it's especially silly and ridiculous that this is coming from a guy who pretty clearly did infringe someone else's copyright in copying their entire article, and he's now using his total misunderstanding of copyright to claim that any copying is infringement.

So, hopefully either Greenfield will file a counternotice or the legal team at CloudFlare will reject such a bogus takedown notice (fwiw, CloudFlare probably doesn't host the site anyway, and could only pass on the notice to the actual host). And Carl David Ceder remains on display as a lawyer who doesn't seem to get copyright law at all, and also has a habit of reacting badly to people calling him out for his own bad behavior. Trying to censor Greenfield's post calling him out is pretty ridiculous. Abusing the law by filing a bogus DMCA takedown, falsely representing himself as the copyright holder (or representing the copyright holder), is even more problematic.

Oh, and finally, I emailed Ceder using the email address he included in the DMCA takedown notice which he said was there to email him if CloudFlare wanted "further information." I asked him a few questions about the notice, but the email immediately bounced back, saying that it was an "alias" that was not found on Office365. But... then Carl emailed me back anyway (suggesting that the email does work, but he also tried to set up some sort of alias that failed), claiming he had no idea what I was talking about and didn't even know what the DMCA was. This seems... difficult to believe. The DMCA notice appears to come from his email, and has his signature file as well. It links to a version of that JC Penney copyright authorization that was uploaded to a Scribd account today on an account named "CarlDavid Ceder."

I also called him (voicemail) and emailed again asking how, if this wasn't him, someone else got their hands on this copyright authorization and is now going around pretending to be him and filing questionable DMCA notices on his behalf. In response, he did not answer this question, but again insisted that he has no idea what I'm talking about. I guess it's possible that someone is trying to make him look bad by filing a bogus DMCA notice, though that seems like an awfully weird con -- and it's still not clear how that person would have gotten access to the JC Penney document. The other alternative, I guess, is that Ceder hired one of those online reputation management companies, and they're doing this. But, even if that were the case, then why wouldn't that company include one of its own email addresses as the "further information" email in the DMCA takedown notice (unless that's what the broken email alias is supposed to be). Either way, the Occam's Razor most likely answer is that Ceder did send the takedown, and didn't want to admit it to me, but I'm open to other possible explanations. Seeing as none has arrived as of yet, I believe the existing story stands.

Update: In a series of emails since this post went live, Carl has insisted that he has not read the post, but insisted that he put this matter all behind him, and wanted me to make sure I mentioned that he's now Facebook friends with Dan Hull -- the individual whose work he initially copied -- and also a fan of Brian Tannebaum, another legal blogger we've mentioned here in the past (I'm not even sure what his complaint with Tannebaum is about). He has not yet explained how this DMCA notice was sent (though he insists he doesn't even know what it is). So now I've mentioned both points. It still doesn't explain the DMCA notice at all. Anyway, here's what Carl David Ceder wants me to make sure I put in my post:

In your post, did you mention any of the nice things I mentioned about Dan Hull and Brian Tannebaum? Or did you leave that out. I would like to talk to you in person - because you are being very unclear with your e-mail messages. If you are going to write something about this, I would appreciate you mentioning how, without any time to reflect on how to respond, my first reaction was how me and Dan Hull and have not only reconciled, but have put this matter way behind us. Brian Tannebaum was related to the matter that happened years ago - and I hope you mentioned how I spoke only positively about his new book, and also the e-book he wrote long ago about clients. As a reporter, I hope you did cover the whole truth and all the facts, including the ones mentioned above. I'm not exactly sure what you are accusing me of honestly, but what I do know is I was trying to communicate this matter was put behind me literally years ago. And based on what I said about Hull and Tannebaum, what motive would I have to do something that would bring to the forefront something that happened literally years ago. I still haven't read your article, but I do hope if you did mention things from our correspondence, you reported the whole truth - and did not choose to selectively decide only to include things that would create better fodder for a story where there probably isn't one. Also, I'm not sure if you are an attorney and just blog, but if you are in the legal field, you no doubt realize how time consuming a trial that I am about to begin in two days can consume almost all of your time. As I type this, I am going to interview a potential witness to fully prepare. You seemed to indicate that whatever was done was recent. Look up the Collin County court records and the name of the person I have a trial set for Wednesday. It's a 2nd degree Felony charge with huge ramifications that hinge on the outcome. In your analysis, I hope you considered how unlikely it would be for an attorney to have time to do whatever it is you think was done. I spent almost all of Sunday (yesterday) at the Collin County jail prepping my client for testifying. This is also public record - check the Collin County jail list. You will see where I've spent my time the last 72 hours or so.

So there's that. Don't let it be said that I didn't give him a chance to present his side.

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]]>carl david ceder is a bad lawyerhttps://www.techdirt.com/comment_rss.php?sid=20160711/11004234937Wed, 8 Jun 2016 11:40:26 PDTAnother Entity Thinks A Random Bundle Of URLs Is A Legitimate DMCA Takedown RequestTim Cushinghttps://www.techdirt.com/articles/20160605/14062334628/another-entity-thinks-random-bundle-urls-is-legitimate-dmca-takedown-request.shtml
https://www.techdirt.com/articles/20160605/14062334628/another-entity-thinks-random-bundle-urls-is-legitimate-dmca-takedown-request.shtmlCopyright as censorship is one thing. Copyright as blundering, drunken bull in the DMCA china shop is another. We've seen this before: sloppy algorithms generating DMCA notices targeting not only possibly infringing content, but also the rights holders' own websites, listings as IMDb, critics' reviews -- basically anything that might have the copyrighted content's name in the URL.

Over the course of a few days reporting organization Copyright UNIVERSAL asked Google to remove thousands of links from its search engine. In their listing we do indeed see some infringing URLs, but it’s the legal content that really stands out.

In fact, it is safe to say that no website is safe for the overzealous anti-piracy group.

Over the past week Copyright UNIVERSAL has asked Google to remove 4,224 URLs including various high profile sites.

At some point during the early part of CU's onslaught, Google itself declared the "rights holder" to be an imposter:

But it apparently withdrew that tag, either in resignation or because, despite itself, CU managed to occasionally hit its target. That being said, it's tough to tell what CU is attempting to protect. Many of its DMCA notices never declare what content it actually holds the rights to.

Fortunately, Google has done little more than allow Copyright UNIVERSAL to repeatedly beclown itself. Its most recent requests seem to be a bit more targeted, but still fail to explain why an entity using the name "UNIVERSAL" is "protecting" content owned by rival movie studios.

And it's only marginally better at hitting its targets. This particular DMCA notice may only target 38 URLs, but that includes multiple web pages featuring nothing more than interviews with "Barbershop 3" cast members or trailers promoting the film.

Because rights holders want the severest of consequences for those who don't comply with DMCA requests, but refuse to apply the same standard to themselves or their DMCA takedown bots, this sort of abuse remains common. Until that end of the exchange is taken more seriously, there's nothing stopping DMCA takedown companies from solemnly swearing that every single bogus URL is correct to the best of their knowledge, even when the most cursory review shows otherwise.

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]]>please-delist-'*.com'-thxhttps://www.techdirt.com/comment_rss.php?sid=20160605/14062334628Tue, 7 Jun 2016 11:39:38 PDTAxl Rose DMCAs Unflattering Photo For Which He Doesn't Hold The CopyrightTimothy Geignerhttps://www.techdirt.com/articles/20160606/10481734639/axl-rose-dmcas-unflattering-photo-which-he-doesnt-hold-copyright.shtml
https://www.techdirt.com/articles/20160606/10481734639/axl-rose-dmcas-unflattering-photo-which-he-doesnt-hold-copyright.shtml
Show of hands: who remembers Axl Rose? Last we here at Techdirt checked in on him, Rose was busy suing video games and hassling music bloggers over album leaks. The younger among you may chiefly be familiar with his Axl-ness via a somewhat popular string of internet memes centered on some rather unflattering pictures of the musician taken from a concert in 2010.

There are, like, tons of these. And, as you can surely understand, Rose isn't pleased that these memes are going around. Hell, we all have photos taken of us that we probably don't find flattering, and Father Time ends up foisting pounds and wrinkles on all of us that we'd rather not have. What most of us don't do, however, is cook up a copyright claim on a photograph we didn't take and try to get Google to remove every use of the picture from the internet. Rose has done that. And you'll never guess who he employed to help him do so!

“Copyright image of Axl Rose. Please be advised that no permission has been granted to publish the copyright image so we cannot direct you to an authorized example of it,” the notices sent by Web Sheriff on behalf of the singer read.

Hi there, Web Sheriff! In between money-laundering, abusing human rights, and generally breaking roughly all the laws over here at Techdirt, we had just enough time to notice you have a strange view on how copyright law works! This comes as only a mild shock to us, given how confused you folks appear to be on all the other laws you routinely talk about, but let's give this a go, shall we?

The DMCA notices all revolve around photos taken in 2010 at a concert. Those photos were taken by Boris Minkevich and published by the Winnipeg Free Press.

TorrentFreak tracked down the photographer who captured this moment to see if he was aware of these takedown efforts. We eventually found Boris Minkevich at the Winnipeg Free Press where his fine work is published in all its glory. During our initial discussions a few things became clear. Firstly, Minkevich definitely took the photo. Second, Minkevich had no idea that Rose was trying to “cleanse the web” of his photo. Perhaps the first reaction here is that Rose has no right to take down Minkevich’s photo. Since Minkevich was the one who took it, he must own the copyright, right? Web Sheriff doesn’t seem to think so.

“We can gladly confirm that all official / accredited photographers at [Axl Rose] shows sign-off on ‘Photography Permission’ contracts / ‘Photographic Release’ agreements which A. specify and limit the manner in which the photos can be exploited and B. transfer copyright ownership in such photos to AR’s relevant service company,” the company told TF in a statement.

Now, TorrentFreak reached out to Minkevich, who had no idea this takedown blitz was underway. He confirmed that some concerts do indeed make photographers sign these types of agreements, but couldn't recall if this concert included one or not. Web Sheriff, who certainly should be able to produce the agreement, having taken the lead on the copyright claims, isn't doing so. When asked, Web Sheriff's response was instead to insist that even if the photographer had not signed an agreement -- leading me to believe he probably didn't --, that Rose would still be able to claim ownership over the photo.

“[If a photographer] was there and taking shots without permission or authority, then other considerations / factors would come-into-play as to what such individuals can and cannot do in terms of attempting to commercially exploit the resultant images of someone else’s show,” TF was informed.

I would politely ask Web Sheriff what the sweet child of mine it is talking about here. Unless the photographer transferred copyright of the photo over to Axl Rose, the photographer retains copyright ownership over it. One would think that if any transfer had actually taken place, Web Sheriff would simply produce it, but it hasn't. If no transfer ever occurred, Web Sheriff is simply wrong in claiming copyright over the image. Indeed, Minkevich even mentioned to TorrentFreak that the photos are infringing, but that they are infringing on his and/or the Winnipeg Free Press' copyrights. And even that may not be true, given the room that Fair Use carves for using copyright images.

And the best part of this is that Axl Rose employed Web Sheriff to do all of this to keep the unflattering images out of the public sphere. How is that working out for him?

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]]>by any other namehttps://www.techdirt.com/comment_rss.php?sid=20160606/10481734639Mon, 6 Jun 2016 11:48:29 PDTRIAA Demands Takedown Of ThePirateBay.org, But EasyDNS Refuses Over Lack Of Due ProcessMike Masnickhttps://www.techdirt.com/articles/20160606/10541834640/riaa-demands-takedown-thepiratebayorg-easydns-refuses-over-lack-due-process.shtml
https://www.techdirt.com/articles/20160606/10541834640/riaa-demands-takedown-thepiratebayorg-easydns-refuses-over-lack-due-process.shtmlreturned to its original thepiratebay.org domain. It's basically an ongoing game of wac-a-mole, where the entertainment industry freaks out and scares registrars into taking back whatever domain and TPB just moves on. It's unclear what good this does for anyone, but it keeps happening. And with the return to .org, it appears the entertainment industry has basically lots its mind. First, it had one of its lobbying front groups, the Copyright Alliance write a hellishly misleading post attacking Public Interest Registry (PIR), the organization that currently runs the .org top level domain.

It is shocking that a domain name registry in the United States – one that is dedicated to “the public interest” – is allowing a blatantly illegal site to have a home on the .org domain. This is especially disturbing given that the operators of The Pirate Bay have been found guilty of criminal copyright infringement, The Pirate Bay domain names have been seized or suspended around the globe, and even its co-founder, Peter Sunde, has walked away from it. Despite all this, The Pirate Bay seems to have found a sanctuary here in the United States by PIR.

As far as I can tell, there is no court ruling in the US that says any of the above is true. While it's true that a few former operators were found guilty, they served their time in prison and as far as I know, none are involved in the current site. And, as has been pointed out over and over again, the site is basically a search engine. Accusing it of "criminal infringement" makes no sense. Furthermore, while the Copyright Alliance fought hard to get SOPA passed, it failed. US law does not currently require registrars or registries to remove domains just because the Copyright Alliance or the RIAA dislike a site. Sorry: you didn't get the law you wanted, so don't pretend you did.

Torrenfreak further points out that while the Copyright Alliance points to PIR's abuse policy, it conveniently ignores that said policy does not apply to intellectual property disputes, which require actual due process.

Meanwhile, as the Copyright Alliance was whining publicly, the RIAA was sending a letter to PIR basically saying the same thing, and asking it to take down the .org domain. The letter lists other countries where various TPB domains have been blocked, and then notes:

With respect to the U.S, please remember that the infringing nature of The Pirate Bay has
been noted in each of the Notorious Market Reports issued by the USTR for the past several
years. Per the Google copyright transparency report, over 400,000 infringements have been
identified on www.thepiratebay.org, with over 50,000 since The Pirate Bay moved back to its
.org domain. This is in addition to the over 3,000,000 infringements identified on its previous
alter ego, www.thepiratebay.se. It is well known that The Pirate Bay does not take action in
response to notices. In addition, there have been numerous reports recently of malware and other
abuse occurring via The Pirate Bay at its various domains.

Of course, it's a bit weird to use Google's transparency report as part of its argument, since that just details accusations, rather than actual evidence of infringement (and, again, I don't know how many times this needs to be pointed out, but TPB doesn't host any content). And, again, the RIAA supported SOPA, but it lost. It should stop pretending it won.

PIR, in turn, forwarded the letter on to TPB's registrar, EasyDNS. EasyDNS then contacted TPB to discuss the possible policy violations, and got back reasonable answers that it was not actually in violation. On the question of copyright, TPB claimed that it now abides by the DMCA:

TPB is DMCA compliant and if TPB receive any DMCA complaints from
RIAA they will be investigated and removed if found to be valid. We
have not revived[sic] any DMCA complaints from RIAA at all so far this
year.

Some may point out that TPB, in the past, regularly ignored (or mocked) the DMCA, noting that as a non-US company, it was not subject to US laws. Whether or not TPB still ignores DMCA takedowns could, arguably, impact if it's abiding by registrar policies, but without a court weighing in, it's difficult to see how a registar should take the RIAA's word for it without more evidence.

The RIAA's letter also notes TPB distributing malware, and so EasyDNS asked about that as well, to see if it violated its terms of service, and again TPB insists that the RIAA is being misleading:

As with every site that are displaying 3rd party advertising trough
external ad-networks, sometime bad and corrupt ads slips by, it
happens to everyone, here is an example:

As soon as it is discovered/detected on TPB, the ads will be taken
down, or the entire ad-tag from where the malware comes, until the
issue is resolved. Usually with the help of google webmaster-tools
to track down the exact source of the malware.

It has happened twice during 2016, both times when adding new ad-
networks, They were taken down directly when detected.

Based on that, EasyDNS properly notes that it has no legitimate basis to takedown TPB's .org domain.

At this time we find no violation of our AUP. Absent either a specific
proceeding pursuant to our accreditation as a .ORG registrar or a legal
finding in a competent jurisdiction to the Province of Ontario, there is
nothing for us to do.

easyDNS will of course always: comply with our contractual obligations -
both to the registries we operate under and to our customers; comply
with the laws under which govern our jurisdiction (the Province of
Ontario, Canada) and enforce our own Acceptable Use Policy.

Thank you for bringing this matter to our attention.

In a blog post, EasyDNS President Mark Jeftovic explains the due process rationale here:

Our opinion in these matters continues unchanged. As a Registrar or as a DNS provider unless there is a clear violation of our AUP or net abuse (which we are competent to detect), taking action against domains based on content or at the behest of third-parties, regardless of their altruism or noble intentions, amounts to having us adjudicate international law. It's not reasonable to expect us to do that and you don't want your domain registrar doing that.

This is the key point. Whatever you believe about TPB -- and many people see it as being horribly illegal, obviously -- due process has to mean something. The RIAA and its friends should not just be able to point to something and say "illegal, kill it!" because they have a fairly long history of being totally wrong about such things. In the past, they've argued that nearly every innovation is illegal, from player pianos to radio to cable TV to the photocopier to the VCR to the DVR to the MP3 player and to YouTube. And over and over they've been wrong about those things. And that's why due process is important, and why it's good to see EasyDNS (and PIR) recognizing this.

Jeftovic, by the way, separately highlights that no one should think of EasyDNS as being "friendly" to bittorrent site operators, as he expects it won't be long until there will be sufficient due process to take down those sites:

We should also mention our Open Letter to Bit Torrent operators, wherein we predict a near-future where due process across borders catches up with technology and when that happens it will be relatively quick, easy and painless for a law enforcement agency in one country (i.e. Sweden) to have the requisite order issued in another country (like Canada, eh) and cause a domain that appears to be flagrantly violating copyright and freeriding on content creators efforts to be shut down.

Ahead of that day, if I were a filesharing site operator I'd be using my time wisely in concentrating my efforts on legitimizing my operations. This would include negotiating blanket licensing agreements with mechanical rights agencies.

In other words, contrary to what some will claim, this is not EasyDNS standing up for torrent sites. It's EasyDNS standing up for basic due process. You'd think that the Copyright Alliance and the RIAA would support due process, but apparently that's too difficult.

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]]>wac-that-molehttps://www.techdirt.com/comment_rss.php?sid=20160606/10541834640Fri, 27 May 2016 12:42:00 PDTThe DMCA Should Not Be An All Purpose Tool For Taking Down Content; And It's Espeically Bad For HarassmentMike Masnickhttps://www.techdirt.com/articles/20160527/01241334560/dmca-should-not-be-all-purpose-tool-taking-down-content-espeically-bad-harassment.shtml
https://www.techdirt.com/articles/20160527/01241334560/dmca-should-not-be-all-purpose-tool-taking-down-content-espeically-bad-harassment.shtmlDMCA for harassment, where people could issue takedowns? And remember how we pointed out that this would make things worse, because just as the DMCA is regularly abused to silence people, this new tool would actually be used as a tool to harass more people and silence their speech? Here's just a little example of why a DMCA-like approach is a really, really, really bad idea as a way to deal with harassment or abuse online. Business Insider has a story about an unfortunate setup where a woman who is clearly being harassed was told by Twitter that she should file a DMCA notice, since some of the harassment involved using some of her photos. Following the sending of the DMCA notice, Twitter forwarded her notice to the folks harassing her, making them somewhat gleeful since it included her full contact info.

The Business Insider story doesn't reveal who the person is, and we're not going to do so either, because having looked at the details it's not going to do anyone any good. Suffice it to say that the story is legit. It involves a "controversial" topic (that shouldn't be controversial, if you're even remotely informed) and I don't want the comments on this story to devolve into an argument about said controversial topic. Either way, this is a clear story where some people on "one side" of this issue decided they were going to harass and intimidate someone on the other side. And this wasn't just garden variety "disagreement on the internet" that someone claims is harassing. This was a dedicated plan to intimidate the person. And they were clearly happy about getting her info and planned to do more with it:

Elsewhere the same people discussed literally using the general controversy over the DMCA to create further harassment of the individual.

The person complained to Twitter about the harassment and it appears that someone from Twitter told her that since the people harassing her were using photos, she should make a DMCA complaint. This was mistake number one. The DMCA should never be used for things that aren't really about copyright issues. It's not designed for that kind of thing and Twitter deserves to be chided for one of its employees suggesting that. However, in looking at the commentary around all of this, a lot of people are angry that DMCA notices involve passing on the full notices. I saw someone complain that companies should never forward on DMCA notices because it only will be used for abuse. That's a really bad idea.

There are good policy reasons for why we should want companies to forward DMCA notices on to the person who gets their work taken down. For one, given all the bogus takedown notices we talk about, things would be a lot worse if the people who were accused of infringement never were able to find out the details of who sent the notice. That's part of the point of the DMCA, to create at least some channel of communication between the copyright holder and those accused of infringing. Obviously, in a harassment situation, things are totally different and it's why the DMCA notice-and-takedown is exactly the wrong tool for this sort of thing, and any attempt to expand it in that direction is a really, really bad idea.

Furthermore, we should want DMCA notices passed on, including to places like Lumen Database, because that's how we actually get some information about how the DMCA notice and takedown process is working -- or not working. Worrying about censoring information in notices or not passing them along is not a good move. It just highlights why the DMCA process is a bad idea in contexts like harassment.

Now, the Business Insider article does make a good point that other companies, like Automattic and Github, are much clearer to people who are submitting DMCA notices that their details will be passed on to those who they're accusing of infringement -- and point out that you can have an agent file on your behalf. That's also something that Twitter should do. But people complaining that Twitter should not forward on DMCA notices are confusing two separate issues. Twitter absolutely should forward on DMCA notices. That's important. What they shouldn't do is tell people to file DMCA notices over harassment issues.

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]]>so-dumbhttps://www.techdirt.com/comment_rss.php?sid=20160527/01241334560Mon, 23 May 2016 14:10:00 PDTFox In The Henhouse: Uses Someone Else's YouTube Clip In Family Guy, Then Takes Down The OriginalMike Masnickhttps://www.techdirt.com/articles/20160520/17505934500/fox-henhouse-uses-someone-elses-youtube-clip-family-guy-then-takes-down-original.shtml
https://www.techdirt.com/articles/20160520/17505934500/fox-henhouse-uses-someone-elses-youtube-clip-family-guy-then-takes-down-original.shtmlroundtable on the DMCA, a representative from Fox was adamant about pushing for stronger punishment for sites that hosted infringing content. But she also made sure to respond to a point raised earlier about abusive takedowns. Someone had pointed out that in 2013, Fox had issued a bogus DMCA notice that took down a copy of Cory Doctorow's excellent book Homeland, because its robotic censors couldn't distinguish Cory's novel from its TV show of the same name. Before launching into her speech pushing for expanding copyright laws to provide more power for censorship, she wanted to "explain" what happened with Cory's book, and said that it happened because Doctorow's book "was on torrent sites" -- as if this made it okay. That leaves out the kind of important fact that Doctorow released the book under a Creative Commons license that allowed it to be shared anywhere, including torrent sites.

Yes, of course, after TorrentFreak posted about this late last week and the news started to spread, the takedown was lifted -- either by Fox or by YouTube itself -- but it again highlights the problems with these demands for automated filtering or notice-and-staydown systems. They don't work very well in many, many situations. And they create complications like this one -- and not everyone will get a site with a large following to write a story about it, getting enough attention to get the situation fixed. So many people on the copyright legacy side of things keep insisting that it's "easy" to just take down actually infringing stuff. Yet, time and time again, that's been shown to be wrong. There are lots of mistakes, and when you're talking about expression, we shouldn't tolerate systems that allow someone to automatically censor speech.

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]]>because-that's-how-it's-done!https://www.techdirt.com/comment_rss.php?sid=20160520/17505934500Mon, 23 May 2016 09:26:00 PDTYou're Entitled To Your Own Opinions, But Not Your Own Facts About Copyright, NY Times EditionMike Masnickhttps://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtml
https://www.techdirt.com/articles/20160520/12113134499/youre-entitled-to-your-own-opinions-not-your-own-facts-about-copyright-ny-times-edition.shtmlSilicon Valley hates music, that is so chock full of out and out factual errors that it's an embarrassment for the NY Times to have allowed it to be published. Is fact checking dead at the Gray Lady? It's perhaps not as embarrassing for Taplin, who's been spewing ridiculous falsehoods for years about how technology is out to destroy all creative culture. In the past we've had to correct his blatantly false statements, but it seems odd to us that the NY Times would let him publish a piece so devoid of facts. Let's dig in and do some editing and fact checking that the NY Times apparently failed to do.

That’s a fight artists are losing. It’s been 17 years since Napster, the online file-sharing software, began flooding the Internet with free, illegally uploaded music, devastating musicians and the industry. While Napster is long gone, the looting continues, only now it is technology giants like Google and SiriusXM, along with streaming services like Pandora, that are responsible.

This is an interesting, and bizarre, claim, given that unlike Napster, the three companies named all pay a ton of money in license fees for the works in question. In fact, both SiriusXM and Pandora have struggled to reach profitability in large part because of the massive percentage of revenue that goes directly to record labels (note: not directly to the musicians themselves, which may give you a hint as to the real problem). Last fall, Pandora noted that it had paid $1.5 billion in licensing, with over $500 million of that coming in 2015 alone (and this was before the year ended). The company has shown that approximately 60% of revenue goes to licenses, and this is a capital intensive business, given that it has to stream a ton of content and bandwidth for that level of streaming is not cheap. Spotify, similarly, has claimed to pay out approximately 70% of revenue. A year ago, Spotify claimed to have paid out $3 billion, noting a run rate of over $1 billion paid to artists per year. YouTube has similarly paid out over $3 billion.

It takes quite a lot of gall to argue that these services, which didn't exist at all just a few years ago, but which have consistently moved people away from piracy by creating services that people like -- and which often pay more than 50% of their revenue in royalties, are somehow "looting" the industry. Does he not realize that without these services, it's likely that there would actually be more piracy, from which the artists would receive no direct remuneration? Would he prefer that? Or would he prefer that these companies be forced to pay even more so that they couldn't even exist any more at all, which would, once again, drive people right back to piracy? It makes no sense at all. To call this "looting" is nonsensical and not fact-based.

YouTube, which is owned by Google, is now the world’s dominant audio streaming platform, dwarfing Spotify and virtually every other service. Yet it pays artists and record companies less than a dollar a year for every user of recorded music, thanks to rampant piracy on its site (by contrast, Spotify licenses its music and pays $20 per user each year).

This is comparing apples to oranges. Spotify is just a music service. YouTube is mostly other stuff, with some music. Notice that he doesn't compare Spotify to YouTube Red or to Google Music, which are more on par.

The problem has gotten so bad that, in 2015, vinyl record sales generated more income for music creators than the billions of music streams on YouTube and its competitors.

This point was a talking point that the RIAA trotted out earlier this year and has already been debunked. Vinyl HAS NOT generated more income for music creators than music streams. That's just blatantly false. What the RIAA showed was that gross retail value of vinyl sales (i.e., ignoring actual sales price, as well as the cut that goes to retailers and other middlemen) was higher than the net amount that was paid in royalties on just ad-based music streaming (i.e., ignoring all of the subscription and paid revenue). This is worse than an apples to oranges comparison. And, even then, with those caveats, Taplin's claims go way beyond what the RIAA actually showed. The royalties from vinyl that actually went back to artists were a lot less than what went to artists from ad-supported music streaming, not to mention all music streaming.

Either Taplin is lying or he's totally misinformed.

Google has also leveraged its dominance in Internet search into a cash cow built on advertising. But Google doesn’t care if your search for the movie “Mean Streets” or the music from “The Last Waltz” (both of which I produced) brings up licensed versions or pirated copies: The company sells ads and cashes in either way. Creators, however, get nothing from those stolen copies — except the anguish of watching others grab the value of their life’s work.

Okay, let's try it. I searched for "Mean Streets" on YouTube and on Google's video search. I don't see a pirated copy anywhere. YouTube does show me a licensed version and a variety of obviously fair use clips (all less than 5 minutes). Google Video search seems to just show me the theatrical trailer and some fair use clips.

In neither search do I see an unlicensed version. A regular (not Google Video search) Google search again points to clips, but also has multiple options on where you can pay to see a licensed version. I don't see a pirated version anywhere.

Google has basic “digital fingerprinting” technology that could scrub both YouTube and its search results of illegal versions. But instead of safeguarding the work of artists, Google wields this tool as a bludgeon. Creators can either enter into a licensing agreement with YouTube at very low royalty rates, or get left at the mercy of pirates. What looks like protection for copyright holders is more of a protection racket benefiting Google.

This is blatantly false. Not only is it blatantly false, but just last week at the Copyright Office hearings in San Francisco that Jonathan Taplin attended, when someone claimed this, Fred von Lohmann from Google pointed out that it is absolutely false -- something he has now reiterated on Twitter:

What Taplin is (apparently willfully?) confusing, is that in order to use ContentID, you do need to grant Google a license, but that license is to make it legal for them to then hold the copy of the work on file for the purpose of fingerprinting. And, then, you can use ContentID to do "notice and staydown" of any matching copies. To blatantly misrepresent how Google works just days after being told this is wrong just seems... like someone with an axe to grind with no concern for the facts at all.

And all of that raises the question of why the NY Times allowed it to be published without doing even the slightest fact checking?

Unfortunately, there is a sad history of undervaluing musicians in the United States. Terrestrial radio, a $17 billion industry, pays publishing rights (payments to songwriters) but has never paid artists or record companies for music.

Yes, some could make an argument that this setup is unfair, but the market suggests otherwise. The reason that the law said that performers didn't need to be paid was because it recognized that radio was promotional. And it is. That's why every few years the recording industry gets caught up in a new scandal about payola. That is, the copyright holders of the sound recordings have long recognized that radio play is so valuable that they will pay extra money under the table to make it happen, even if that's illegal. Obviously, if the radio play wasn't so valuable, this wouldn't be happening. And yet now they want to get paid extra for that value? That seems to be the exact opposite of what the market suggests is the power dynamic here.

In addition, the satellite radio company, SiriusXM, pays below-market royalties, thanks to a giveaway it first wrested from Congress 20 years ago.

"Below market"? Based on... what? Again, SiriusXM has struggled to barely reach profitability. After years of losses, it has been profitable recently, but just barely.

Conglomerates like iHeartMedia (formerly Clear Channel Communications) and other online services like Pandora, which are required to pay artists for digital streams, have exploited federal copyright law to deny payments for work recorded before 1972 (songwriters are paid; performers are not). This means artists like Aretha Franklin, Ella Fitzgerald, Chuck Berry and John Coltrane never received a dime from AM/FM radio and or from many digital services for some of their greatest music.

The pre-1972 stuff is a long and complicated story that we've covered in detail, and has a lot more to do with the fact that pre-1972 sound recordings are not covered by federal copyright law than any willful plan to "exploit" anyone. And there's a simple solution to this: put those works under federal copyright law. But you know who's fought hard against that? Taplin's friends in the RIAA. Maybe he should take it up with them. He also ignores, of course, that Pandora recently agreed to pay $90 million for those recordings, despite it not being clear if it needs to, legally. Is Taplin asking how much of that money will actually go to artists? Hmm...

The last meaningful legislation in this area was the Digital Millennium Copyright Act in 1998, which was based on the idea that creators should monitor the Internet for illegal copies of their works and give “notice” to websites and services to take pirated material down. Under the act’s “safe harbor” provisions, any service or site that makes a minimal effort to address these notices is immune from liability for piracy or theft.

"Minimal effort"? He seems to be ignoring the vast number of lawsuits, including the one against Veoh, in which Veoh won, but had to shut down over legal fees. It also ignores the fact that basically every other platform spends a ton of money handling takedown notices.

And it ignores the fact that most services have implemented filters and tools that go way above and beyond what the law requires. Why would Taplin ignore all of this? Why would the NY Times let him do so?

That system may have made sense when it took minutes to download an illegal song. But today no individual can effectively police the millions of pirated files that mushroom online and reappear the instant after they are taken down. Google alone received almost 560 million takedown notices in 2015.

And, again, Google spent $60 million building ContentID and related tools that go way beyond what the law requires and gives copyright holders the ability to either monetize their works in new ways or to issue a "notice and staydown".

There are two concrete steps Congress can take that would allow musicians to be treated fairly. First, Congress should update the safe harbor rules of the copyright act to achieve the balance that was intended: protecting creators with effective tools in exchange for not burdening Internet companies with liability. That means strong, well-defined consequences for repeat offenders, easing the process for filing notices and ensuring that services are using the best technology to take pirated material off their sites and keep it off.

So, basically, after flat out lying throughout the piece, and pretending that Google doesn't already have these tools, he wants a law to require such tools. Note: Google already has everything Taplin is asking for. But it spent $60 million putting that together. If Taplin got what he wanted, he'd lock in Google/YouTube as basically the only players able to handle this market. Does he want new providers and services or is he trying to kill the market entirely?

Second, Congress can address the original sin of AM and FM radio and close the loophole that allows radio companies to use music without paying artists. The Fair Play Fair Pay bill, which has Representative Jerrold Nadler of New York as a sponsor, would ensure that all music creators received fair-market-value pay for their work no matter what technology or service was used to play it. It has the support of hundreds of artists like Rosanne Cash, Duke Fakir of the Four Tops, Elvis Costello, Martha Reeves, Elton John and Common.

Again, given payola, it's hilarious for him to argue that this is necessary, but he's entitled to his opinion -- just not his own facts.

In 2015, after years of battling pirates, Prince said in an interview that the Internet “was over for anyone who wants to get paid.” With Congress’s help, it needn’t be.

Prince was wrong then and he's wrong now. There are more musicians making money from the internet today than ever made money prior to the internet. There are content creators using YouTube, Spotify, Songkick, Soundcloud, Amazon, Apple, Kickstarter, IndieGogo, Patreon and many, many more services to not just make money but to build strong and lasting relationships with their fans.

Again, it's no surprise that Taplin would lie. It's kind of his thing when it comes to his misguided and misinformed anger at the very innovation that's saving the entertainment business. The question is why the NY Times, a paper that prides itself on accuracy, would allow a piece so blatantly false to be published.

But, really, the most disturbing thing about this is that it perpetuates the myth that it's "content creators" v. "the tech industry." This is nonsense. Technology has been a major force in enabling more content creators -- including myself -- to create content, to promote it, to distribute it, and to monetize it. More people than ever before are making and distributing music, videos, books, software and more... because of these tech platforms. This isn't a zero sum game. There are opportunities for everyone to benefit, and setting up this false dichotomy that when one wins the other loses, Taplin and the NY Times are actually setting everyone up to lose by not just misrepresenting reality, but totally misunderstanding the very nature of both creativity and innovation.

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]]>fact checking is deadhttps://www.techdirt.com/comment_rss.php?sid=20160520/12113134499Fri, 20 May 2016 09:38:48 PDTJohn McCain, Forgetting His Own Support Of Fair Use On YouTube, Tries To Use Copyright To Take Down His Own AdMike Masnickhttps://www.techdirt.com/articles/20160520/00145834493/john-mccain-forgetting-his-own-support-fair-use-youtube-tries-to-use-copyright-to-take-down-his-own-ad.shtml
https://www.techdirt.com/articles/20160520/00145834493/john-mccain-forgetting-his-own-support-fair-use-youtube-tries-to-use-copyright-to-take-down-his-own-ad.shtmlsent YouTube a letter, complaining that the video site did not take fair use into account when deciding to pull down videos after receiving copyright complaints. Apparently, some people had been issuing copyright claims on videos related to his campaign that he believed were fair use, and he was quite upset about it. In particular, McCain was upset about videos his campaign had uploaded that included news clips that were taken down. He insisted this was not just fair use, but that YouTube was an important platform for political speech, and should be much more careful before pulling down political videos.

If you can't read that, here are just a few choice quotes from the letter:

YouTube is to be congratulated on the groundbreaking contributions it has made to the political discourse....

... overreaching copyright claims have resulted in the removal of non-infringing campaign videos from YouTube, thus silencing political speech.....

... It is unfortunate because it deprives the public of the ability to freely and easily view and discuss the most popular political videos of the day....

We recognize that the DMCA provides a counternotice procedure (of which we have availed ourselves several times), but this procedure, and the way YouTube has implemented it, provides inadequate protection for political speech, particularly in the context of a fast-paced political campaign.....

From there, the McCain campaign went on to propose that political campaigns get special treatment, and that any videos associated with a political campaign get a more thorough human legal review prior to a takedown. If this sounds familiar, it's the same idea we actually heard proposed by the Copyright Office at their recent hearings. That suggestion of carving out political speech for special rights is a very bad idea, but McCain wasn't wrong to note the problem of copyright being used to censor political speech.

You know where this is heading, right? It appears that McCain's current campaign (for Senate re-election in Arizona) has... issued a copyright takedown on a video posted by Rep. Ann Kirkpatrick, who is challenging him for his Senate seat. Kirkpatrick apparently uploaded a McCain campaign ad from his 2010 Senate campaign about completing "the danged wall" on the border with Mexico, and uploaded a version with Spanish subtitles. Here's the original ad:

Obviously, "the wall" is a political hot potato -- especially this election season -- and Kirkpatrick is (quite reasonably) trying to remind voters (especially Hispanic voters) of McCain's strong support for the wall. That seems like pretty clearly protected free speech in a political campaign. The exact kind of thing that a former McCain campaign once suggested deserved extra protection as fair use. But, now he's just abusing the copyright takedown process against a rival. McCain's campaign suggestion that this was purely about copyright is laughable:

The ad in question was not blocked because of its content, according to Lorna Romero, a McCain campaign spokeswoman.

"The Kirkpatrick campaign launched a digital ad which was a clear copyright violation and YouTube agreed," Romero said.

Again, there's a strong argument that this is fair use. It's certainly not undermining the market for 2010 McCain campaign spots. And, of course, it's not like McCain created the commercial because of the copyright. The whole thing is obviously done to censor a political rival because the message is embarrassing in the context Kirkpatrick raised it in.

It seems like the McCain campaign of today, might want to refresh what the McCain campaign of 2008 had to say:

While the issues presented by YouTube and other Internet technologies are new, the need
to prevent meritless copyright claims from chilling political speech is decidedly not. Thirty
years ago, a federal judge confronting a copyright claim over the use of music in a political
advertisement correctly recognized the importance of preventing copyright from interfering with
political candidates' free and full exercise of their First Amendment right to vigorously debate
the issues of the day:

In the context of this case, the Court must be aware that it operates in an area of
the most fundamental First Amendment activities. Discussion of public issues
and debate on the qualifications of candidates are integral to the operation of the
system of government established by our Constitution. The First Amendment
affords the broadest protection to such political expression in order to assure the
unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.... [T]here is practically universal agreement that
the major purpose of that Amendment was to protect the free discussion of
governmental affairs, including discussions of candidates. This is a reflection of
our profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open. In a republic where the people are
sovereign, the ability of the citizenry to make informed choices among candidates
for office is essential, because the identities of those who are elected will
inevitably shape the course that we follow as a nation.

[....] Though the judge who wrote those words had never used YouTube, the values
he articulated are as true today as they were when he wrote them three decades ago.

And, yes, they are as true today as well. If only the McCain campaign were familiar with what the McCain campaign wrote, because right now, it appears to be doing the exact opposite, in trying to use copyright to censor political debate.

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]]>hypocritehttps://www.techdirt.com/comment_rss.php?sid=20160520/00145834493Fri, 29 Apr 2016 08:32:00 PDTReputation Management Revolution: Fake News Sites And Even Faker DMCA NoticesTim Cushinghttps://www.techdirt.com/articles/20160424/16230834264/reputation-management-revolution-fake-news-sites-even-faker-dmca-notices.shtml
https://www.techdirt.com/articles/20160424/16230834264/reputation-management-revolution-fake-news-sites-even-faker-dmca-notices.shtmlPissed Consumer has uncovered another apparent case of bad reputation management, this one revolving around bogus websites facilitating bogus DMCA takedowns. It previously exposed a pair of lawyers using shell companies and highly-questionable defamation lawsuits to force Google to delist negative reviews hosted around the web. These faux litigants always managed to not only find the supposed "defamers," but to also obtain a signed admission within 48 hours of the lawsuit being filed -- a process that usually takes weeks or months, especially if the alleged "defamer" utilizes anything other than their real name when posting negative reviews.

In this case, the reputation management scheme involves the use of hastily-set up "news" sites that contain a blend of scraped content and negative reviews hosted at sites like Yelp, Ripoff Report and Pissed Consumer.

Frankfort Herald, frankfortherald.com is a newspaper website that, despite its trustworthy name, has never really existed, for all intents and purposes, before January 2016 (according to archive.org). However, this did not stop them from sending a DMCA notice to Google claiming that they were the owners of the copyrighted material from Pissed Consumer that was published back in 2012.

On April 15, 2016 Pissed Consumer received a takedown notice for a review where frankfortherald.com claimed that they originally wrote the piece of news in question back on January 5, 2012. The review is about Brad Kuskin, and they claimed they had it published only 2 days prior to the article appearing on PissedConsumer.com.

The scheme is just as stupid as convicted fraudster Sean Gjerde's rep management Hail Mary: post copies of reviews or articles you want to see vanished at your own website and then issue DMCA notices claiming you own the words of others. It seldom works and tends to draw more attention to the content someone's trying to hide. (Of course, Sean Gjerde went the extra mile and tried to have the FBI's press release about his conviction delisted by Google…)

That's not the only negative content masquerading as "news" at the Frankfort Herald. There's also a negative Yelp review about a Spanish language school, a Ripoff Report review of a Georgia law firm and a CBS story about an apparent scam artist who suckered parents into shelling out thousands of dollars by pretending he was scouting talent for Disney. Disney disavowed any connection to the event. All of these have been targeted by bogus takedown notices under several names linked to the definitely-not-a-local-news-site "Frankfort Herald."

Other fake "news" sites containing a jumble of scraped content and completely unrelated negative reviews have also issued bogus takedown notices within the last 30 days.

AthaNews sent one on March 25th where the sender claims the following is the result of their journalistic efforts:

Bought a house from Lala Ragimov and her “Developer” Husband “Tod”. On the surface their renovatinos seem solid but there were several red flags that I now wish we listened to. 1) “The Ragimov’s” are effectively the same entity. The claim of a seperate relator vs. develoiper and the games they play about “checking with the developer” are a joke. They are husband and wife! 2) We were told our roof was new but the condition was listed as “unknown” in discolsures. We were told this is common since the roof was repaired not replaced. The building was also conviently too tall to bring an inspector with a ladder without a special fee. The result? Leaks almost immideatley! [...]

Of course, the alleged infringer is none other than Ripoff Report, which shamelessly claimed this "journalist's" misspelling-laden "exposé" into a local realtor as its own. [eyeroll] AthaNews' mission statement -- found in the website's footer -- is lorem ipsum translated into English.

SEI World News is doing the same thing. It issued a DMCA notice to Google on April 7th, claiming one of its "news articles" was being "copied."

Once again, Ripoff Report is home to the targeted URL. SEI World has been playing this game for several months now, targeting negative reviews at other site with bogus claims of "copied" articles.

Searching Google's DMCA database using Ripoff Report as the target uncovers all sorts of "news" sites claiming negative reviews hosted elsewhere are the genuine byproduct of their journalistic endeavors. "Mass Communications Inc.?" Bogus takedown of a Ripoff Report review. Some site called "Global Girl Magazine" wants Ripoff Report to stop ripping off its "journalist's" work -- which is apparently something about a fund manager with an alleged penchant for scamming clients after taking their retainer fees, written in the first person. The same thing goes for the "Lewisburg Tribune." And so on...

The clustering of DMCA notices seems to point to a single reputation management bozo pulling the strings on multiple websites like a more focused Patrick Zarrelli. On the other hand, the scattershot approach and slippery grasp of the English language exhibited in the DMCA notices may indicate this is nothing more than a bunch of Fiverr freelancers making reputation management promises they can't keep. In some cases, it appears to have worked. Several of the bogus takedowns show Google has taken action and delisted links. But those victories will only be temporary. Any challenge from a legitimate site should see these decisions swiftly reversed.